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Post grant patent proceedings at the USPTO, such as ex parte and inter partes Reexamination are becoming increasingly favored tools to combat patents of questionable validity. Likewise, some of these same Reexamination tools can also serve as mechanisms to defend and/or focus the scope of pioneering patent portfolios.
The emerging popularity of Reexamination stems from two factors, the first is the recent creation of the Central Reexamination Unit (CRU) within the USPTO. While the use of reexamination by third party requesters was quite modest in the 1990s and the beginning of the 2000s, there has been a dramatic increase in the number of requests since that time. The emerging popularity of reexamination stems in part from the recent creation of a Central Reexamination Unit (CRU) within the United States Patent and Trademark Office (USPTO). CRU Examiners, all of whom are hand-picked experienced primary patent examiners who work in three person teams and handle only reexamination proceedings. Thus, the quality of reexamined patents has increased based on the CRU team approach, and the speed of reexaminations has improved.
The second factor is the increased willingness of some Federal District Courts to stay a patent litigation in the face of an initiated Reexamination. As such, some third parties are filing more reexamination requests in an effort to avoid the high cost of patent litigation in the United States.
Together with Patent Reissue, a post grant tool exclusive to Patent Owners for broadening claims or correcting latent defects in issued patents, the use of these multi-purpose proceedings continues to increase.
Looking forward, recent legislation has been proposed to establish a post-grant opposition proceeding before Administrative Patent Judges of the new USPTO Patent Trials and Appeals Board. This proceeding is proposed to embrace validity issues not currently subject to reexamination review, and to provide limited discovery opportunities. Due to the wide support for this proceeding, it is anticipated that post-grant opposition will become law to replace and/or augment Reexamination options in the future.
With a trained eye on this expanding landscape, PatentsPostGrant.com is dedicated to providing helpful insight and commentary to the complex array of existing and proposed post grant options. Whether patent Reexamination, Reissue or proposed Opposition systems, this resource will provide informed commentary, observed trends, practice tips as well as news for the purpose of sharing our experienced views with our readers.
This informational resource is being provided and maintained by the Reexamination/Reissue Practice Group of Oblon Spivak. As counsel to some of the largest companies in the world, the Reexamination/Reissue Practice Group of Oblon, Spivak is the undisputed leader in post grant patent practice before the USPTO.